Mitchell v. Wormuth

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARY D. MITCHELL,
Plaintiff,
vs.
CHRISTINE E. WORMUTH,
SECRETARY, DEPARTMENT OF THE
ARMY, in her official capacity,
Defendant.
Case No. 3:20-cv-0009 RRB
ORDER REGARDING
MOTION TO DISMISS
(Docket 16)
Plaintiff, Mary D. Mitchell, has filed a Complaint pursuant to Title VII of the
Civil Rights Act against the Secretary, Department of the Army, alleging Hostile Work
Environment (Count 1), Retaliation (Count 2), Deferred Retirement Retaliation (Count 3),
and Disparate Impact (Count 4), all in violation of Title VII of the Civil Rights Act of 1964,
as Amended, 42 U.S.C. § 2000e et seq.1 She seeks a declaration by this Court of a hostile
work environment; a permanent injunction prohibiting Defendant from engaging in
discriminatory and retaliatory employment practices; remedial measures; reinstatement of
lost TSP benefits; damages of $25,000,000; compensatory damages; punitive damages; and
attorney fees and costs.2 She also demands a jury trial.
1 Docket 1.
2 Id.
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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Defendant moves pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss
Mitchell’s complaint for failure to exhaust administrative remedies and failure to state a
claim for which relief can be granted.3 Plaintiff has opposed the motion to dismiss as to
exhaustion, and Defendant has replied.4
I. 	BACKGROUND
Plaintiff is a former GS-13 civilian Army Community Service Division Chief
at Fort Wainwright, Alaska (also known as USAG-Alaska). 	She was so employed
September 6, 2006, until December 31, 2011;5 June 6, 2014, to February 5, 2018; and
September 26, 2018, to April 15, 2019, when she took early deferred retirement.6
Plaintiff alleges that her April 2019 retirement was “forced” due to “multiple
incidents of discrimination, differential treatment, not being given equal employment
opportunities, and retaliation by key leadership of USAG-Alaska because of her race, color,
and national origin created a hostile work environment.”7
Shortly 	after 	her 	early 	retirement, 	Plaintiff 	filed 	an 	EEO 	formal
administrative complaint of discrimination on May 22, 2019, referred to in the Complaint
as the “May 22 charges.”8 	On June 3, 2019, the Army dismissed the May 22 Charges,
3 Docket 16.
4 Dockets 17, 18.
5 From January 1, 2012, until June 6, 2014, Plaintiff transferred to Germany, where she describes
the working conditions as “non-discriminatory.” Docket 1 at 6.
6 Docket 1 at 1–2.
7 Docket 1 at 2. Plaintiff identifies herself as “a 50-year-old adult female, United States citizen,”
whose “race and ethnicity are African American,” but notes that “cultural factors and mannerisms in her
upbringing can give Caucasian Americans the impression that her national origin is foreign.” Docket 1 at
3–4. 8 Docket 1 at 3.
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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concluding that much of the complaint was untimely, and finding that Plaintiff’s allegations
failed to state a claim under 29 C.F.R. §§ 1614.103 and 1614.106(a).9 But on October 25,
2019, the Equal Employment Opportunity Commission reversed the Army’s final decision,
and ordered the Army to process Plaintiff’s harassment/hostile work environment claims
in accordance with 29 C.F.R. § 1614.108 et seq.10 	The EEOC also advised Plaintiff that
she had the alternative right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days, which resulted in the above-captioned case.11
II. 	DISCUSSION
Defendant alleges that Plaintiff abandoned her earlier discrimination claims;
failed to exhaust administrative remedies; fails to state a claim upon which relief can be
granted; and is not entitled to punitive damages.12 Plaintiff opposes dismissal, arguing that
she has exhausted her administrative remedies, and clarifying that her “pleading of
additional historical causes of action prior to her new employment position serve to
establish a pervasive hostile work environment that gives substance to her new claims of
discrimination.”13 Plaintiff’s pro se Opposition to the Motion to Dismiss did not address
the Rule 12(b)(6) argument regarding failure to state a claim.
A. 	Punitive Damages
Section 102 of the Civil Rights Act of 1991 specifically prohibits federal
employees from receiving punitive damages in intentional discrimination cases. 42 U.S.C.
9 Docket 16-4.
10 Docket 16-5.
11 Docket 1 at 3.
12 Docket 16.
13 Docket 17 at 1.
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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§ 1981a(b)(1). 	The law is clear that a governmental entity cannot be liable for punitive
damages under Title VII.
B. 	Failure to Exhaust Administrative Remedies (Counts 2, 3 and 4)
When a motion is made pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction, the plaintiff has the burden of proving that the court
has subject matter jurisdiction over the action.14 Failure to exhaust administrative remedies
precludes jurisdiction by this Court under Title VII.
Title VII specifically requires a federal employee to exhaust all available
administrative remedies before filing an employment discrimination complaint in the
district court.15 Failure to properly and timely exhaust administrative remedies subjects a
judicial complaint to dismissal.16 Defendant submits that Plaintiff’s retaliation claims, as
well as her disparate impact claim, were not properly administratively exhausted.17
EEOC 	regulations 	governing 	the 	acceptance 	and 	processing 	of
discrimination complaints in federal employment cases require a federal employee to
initiate 	contact 	with 	an 	agency 	EEO 	counselor 	within 	45 	days 	from 	the 	alleged
discriminatory act.18 The Army’s June 3, 2019, Notice of Dismissal found that the majority
of Plaintiff’s complaint was untimely, because she “did not contact the EEO counselor
14 Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001).
15 Vinieratos v. U.S. Dep’t of Air Force Through Aldridge, 939 F.2d 762, 767–68 (9th Cir. 1991);
Brown v. General Services Administration, 425 U.S. 820, 832 (1976).
16 See, e.g., Brown, 425 U.S. at 832.
17 Docket 16.
18 29 CFR § 1614.105(a)(1). 	See generally 29 C.F.R. 	§§ 1614.104–1614.110 (detailing
administrative processing of federal Title VII complaints).
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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within forty-five (45) days of the discriminatory event . . .”19 	On appeal, however, the
EEOC found that hostile work environment claims “collectively constitute one unlawful
employment practice,” and that the entire hostile work environment claim was actionable
provided at least one incident occurred within the 45 day filing period.20 The EEOC found
that the “various incidents comprising Complainant’s hostile work environment claim
occurred within the 45-day time period,” that “a fair reading of the record reflects that the
matters which the Agency identified in claims 1.a-l are part of that harassment claim,” and
therefore the Agency improperly dismissed these claims as untimely.21 	Accordingly,
Plaintiff has preserved her claim for hostile work environment (Count 1), and this Court
has subject matter jurisdiction over the issue.
But Defendant is correct that Plaintiff failed to plead retaliation (Count 2),
deferred retirement retaliation (Count 3),22 or disparate impact (Count 4), in her EEOC
complaint or appeal.23 Rather, Plaintiff’s sole claim at the administrative level was related
to hostile work environment/harassment on the basis of race, color, and national origin.
Plaintiff’s letter to the EEOC stated: 	“All of the events in my complaint contain
discrimination based on my race, color, and national origin.”24 Both the Army EEO Office
and the EEOC interpreted her complaint to allege race, color, and national origin
19 Docket 16-4 at 3.
20 Docket 16-5 at 4.
21 Id.
22 Defendant aptly characterizes Count 3, which Plaintiff styles as “Deferred Retirement
Retaliation” as a claim for Constructive Discharge. Docket 16 at 24–28.
23 See Dockets 16-3, 16-5 at 2.
24 Docket 16-3 at 1.
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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discrimination, but not retaliation, constructive discharge, or disparate impact.25 	In light
of the foregoing, Counts 2, 3, and 4 are dismissed for failure to exhaust administrative
remedies.
C. 	Hostile Work Environment (Count I)
(1) 	Federal Rule of Civil Procedure12(b)(6)
Plaintiff clearly exhausted her administrative remedies as to Count I, Hostile
Work Environment. 	The only issue remaining, therefore, is whether Count I should be
dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. 	Rule12(b)(6) tests the legal sufficiency of a complaint.26 	When considering a
12(b)(6) motion to dismiss, courts generally must accept the plaintiff’s allegations as true
and construe them in the light most favorable to plaintiff.27 However, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”28 	Moreover, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.29
The United States Supreme Court has specifically addressed the pleading
requirements in a civil action:
25 Even if Plaintiff had exhausted her disparate impact claim, the premise of disparate impact
discrimination is that some employment practices, adopted without a deliberately discriminatory motive,
may in operation be functionally equivalent to intentional discrimination. Watson v. Fort Worth Bank &
Tr., 487 U.S. 977, 987, 108 S. Ct. 2777, 2785, 101 L. Ed. 2d 827 (1988). Plaintiff does not allege that any
facially neutral workplace rule or test disproportionately impacts members of a particular protected group.
26 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
27 Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Illinois, 983 F.3d
435, 439 (9th Cir. 2020).
28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
29 Iqbal, 556 U.S. at 678.
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Under Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”. . . [T]he pleading standard
Rule 	8 	announces 	does 	not 	require 	“detailed 	factual
allegations,” 	but 	it 	demands 	more 	than 	an 	unadorned,
the-defendant-unlawfully-harmed-me 	accusation. 	. 	. 	. 	A
pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” . . .
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” . . . A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.30
The Court has reviewed Plaintiff=s Complaint and Defendant’s Motion to Dismiss in
keeping with the above principles.
(2) 	Prima facie case
Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment,” or “to limit,
segregate, or classify his employees . . . in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely affect his status as an
employee,” due to “race, color, religion, sex, or national origin.”31
To establish a prima facie case of hostile work environment, a plaintiff must
raise a “triable issue of fact” as to whether:
30 Id. (internal citations omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
31 42 U.S.C.A. § 2000e-2.
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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(1) 	the defendants subjected her to verbal or physical conduct
based on her race;
(2) 	the conduct was unwelcome; and
(3) 	the conduct was sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive working environment.”32
The Supreme Court has instructed as follows:
We directed courts to determine whether an environment is
sufficiently 	hostile 	or 	abusive 	by 	“looking 	at 	all 	the
circumstances,” including the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably 	interferes 	with 	an 	employee's 	work
performance.” . 	. 	. 	[But] 	“simple 	teasing,” . 	. 	. 	offhand
comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the “terms and
conditions of employment.”33
The Supreme Court was clear that the “standards for judging hostility are sufficiently
demanding to ensure that Title VII does not become a ‘general civility code.’”34
Defendant asserts that Plaintiff fails to state a claim for hostile work
environment based upon race, national origin, or color, arguing that, while Plaintiff alleges
a “laundry list of trivial workplace slights,” only two of those incidents were arguably
connected to her race.35 Therefore, argues Defendant, “plaintiff has not alleged severe and
32 Surrell v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008) (citation omitted)
(emphasis added).
33 Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (internal citations omitted).
34 Id.
35 Docket 16 at 20–24. “Specifically, plaintiff alleges that some unidentified person at work told
plaintiff that another unidentified person at work commented (in the midst) of describing plaintiff in a
negative light that she was black. The only other ‘incident’ occurred when someone at work told plaintiff
that ‘DPTM’s Jackson’ uttered the words ‘that’s what blacks do, complain and get benefits from the
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Mitchell v. Wormuth 	Case No. 3:20-cv-0009 RRB
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pervasive conduct or conduct that is plausibly connected to her protected categories,” and
does not meet the standard needed to show a plausible hostile work environment.36
Defendant suggests that Plaintiff’s allegations arguably connected with her race are “far
less severe and pervasive” that in either Vasquez v. County of Los Angeles,37 or Kortan v.
California Youth Authority.38 	But Vasquez and Kortan both involved isolated incidents.
Here, the Complaint includes almost 15 pages of incidents between 2010 and her early
retirement in 2019.39
According to Plaintiff, she “began to experience differential treatment by USAG
leadership” in 2010 when she tried to terminate Shannon Thornton, a Caucasian male, whom she
found had “violated the prevention of sexual harassment protocols, made racist remarks, and
physically assaulted a UPS delivery driver.”40 Plaintiff’s termination procedure was overturned,
Thornton was transferred to a different supervisor, and Plaintiff alleges that Thornton thereafter
“was allowed to speak in very derogatory terms about her on a regular basis.”41 Shortly thereafter,
Plaintiff received an unexpected “negative performance rating” on September 8, 2011, which
Plaintiff believes was a racially-motivated act of retaliation for trying to terminate Thornton.
system.’ Plaintiff was not even present for either of these vague allegations; rather she claims to have heard
them second-hand from some unidentified individual. Indeed, it is not even clear that the second statement
is in reference to her.” Id. at 23.
36 Docket 16 at 23.
37 349 F.3d 634, 642–43 (9th Cir. 2003) (finding no hostile work environment where supervisor
made derogatory statements regarding Hispanics six months apart).
38 217 F.3d 1104 (9th Cir. 2000) (finding no hostile work environment where supervisor made a
“flurry” of offensive comments regarding women in a single instance, concluding that the offensive
behavior was not “severe or pervasive,” and that the plaintiff failed to show an adverse employment action).
39 Docket 1 at ¶¶ 23–74.
40 Docket 1 at ¶¶ 25, 56.
41 Docket 1 at ¶ 26.
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Several years later, in 2018, Thornton was employed as a Supply Specialist, and falsely accused
Plaintiff of theft.42
She alleges that she was prevented from networking activities and advancement
opportunities presented to all of her Caucasian coworkers,43 failed to receive public recognition
for accomplishments like her Caucasian coworkers,44 was left out of email loops sent to her
colleagues,45 was not allowed to attend meetings relevant to projects she was working on,46 and
was ignored during the meetings she was permitted to attend.47 	She alleges that her Caucasian
staff members routed everything through the Caucasian coworker with whom she shared
supervisory responsibilities. 48 	She was told by her supervisor that the Deputy to the Garrison
Commander did not like her, and therefore alleges that the Deputy’s “dislike of a person of color
allowed for others under her command to embrace a climate of hatred towards people of color.”49
Plaintiff alleges that she was: 	Excluded from socializing with other employees
because “she was not one of them – meaning a Caucasian”;50 Denied leave under FMLA when her
children were victims in a criminal matter;51 and “Bullied” by Victim Advocate Laurie Weyanna,
whom she alleges also favored Caucasian victims over non-Caucasian victims in her work, but
that complaints regarding Weyanna only brought Plaintiff more criticism.52
42 Docket 1 at ¶ 56.
43 Docket 1 at ¶¶ 28, 32.
44 Docket 1 at ¶ 36.
45 Docket 1 at ¶ 65.
46 Docket 1 at ¶¶ 57, 59, 60, 68.
47 Docket 1 at ¶ 63.
48 Docket 1 at ¶29.
49 Docket 1 at ¶¶ 30–31.
50 Docket 1 at ¶ 31.
51 Docket 1 at ¶ 72.
52 Docket 1 at ¶ 34.
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Plaintiff alleges that an outside Auditor, Michelle Thomas, who evaluated her
workplace, and who also was a person of color, noted that there were no people of color in
leadership positions, opined that “leadership was out to fail Ms. Mitchell,” and told Plaintiff’s
superiors that Plaintiff “needed to have access to information to do her job effectively.” 	She
alleges that the superiors “responded negatively to Michelle Thomas . . . furthering the message
that people of color will be treated different than Caucasians.”53
Plaintiff alleges that her reputation was tainted by comments alleging that she “was
black, violent, stole, had punched a client . . ., and sexually harassed someone,”54 and that she was
the subject of a memorandum entitled “Mary Mitchell Undue Disruption Determination,” which
contained 	“unsupported 	statements 	that 	misrepresented 	facts 	with 	the 	intent 	to 	injure
Ms. Mitchell’s prospects of future employment opportunities,” all of which Plaintiff believes were
racially motivated.55
She alleges she was terminated (later reinstated by the MSPB) after being targeted
for her race over a “piece of information from a 2004 credit report,” which had been “previously
cleared by security personnel in 2006,” while noting that when Caucasian employees were found
unsuitable for their positions, they were reassigned rather than terminated.56 Upon her return to
work, she was approached by coworkers who accused her of using a “loophole” to get her job back
after she “punched someone in the face,” and that a coworker said “that’s what blacks do, complain
and get benefits from the system.”57 Two days after returning to work, she was accused of theft
due to missing equipment, a false charge brought on by the male employee, Shannon Thornton,
53 Docket 1 at ¶¶ 42, 43.
54 Docket 1 at ¶ 45.
55 Docket 1 at ¶ 49.
56 Docket 1 at ¶¶ 37–40.
57 Docket 1 at ¶ 55.
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whom she had tried to fire in 2010. 	She further alleges that supervisors employed a Caucasian
friend in a position for which they were not qualified, even lowering the standards on job
descriptions so the individual would qualify.58
In December 2018, a Caucasian woman was selected to replace her in her current
position, she was moved to a lower grade position (although kept her GS13 status), and was moved
to an office “hidden from view.”59 	Her new supervisor reduced Plaintiff’s work to “menial
tasks.”60 Three months later, she walked in on a conversation between two employees who “were
talking about an employee of color that was made to work at a location away from everyone and
that it just wasn’t right adding that the employee of color was not given the opportunity to work
on projects like the other Caucasian employees in the same position description.”61
Plaintiff alleges that an employee of color was terminated after complaining about
assaults, waste, fraud, and abuse, and that leadership was “upset because someone from above had
advised them to stop the harassment” after “continued complaints of discrimination against
persons of color.”62 In support, she cites an October 24, 2018, Climate Survey Report on USAG-
AK that allegedly concluded that “65% of minority respondents reported discrimination and sexual
harassment retaliation while at USAG-AK.”63
Only a complaint that states a plausible claim for relief survives a 12(b)(6)
motion to dismiss, and “[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw on its
58 Docket 1 at ¶¶ 51–53.
59 Docket 1 at ¶ 58.
60 Docket 1 at ¶ 58.
61 Docket 1 at ¶ 66.
62 Docket 1 at ¶¶ 69, 70.
63 Docket 1 at ¶ 22.
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judicial experience and common sense. . . .”64 While Defendant describes the foregoing as a
“laundry list of trivial workplace slights,” the cumulative nature of “hostile conduct [which]
pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her
work, and to desire to stay on in her position,” is adequate to show a hostile work environment,
and “Courts have long recognized that a workplace in which racial hostility is pervasive constitutes
a form of discrimination.”65 	Plaintiff need only present a “triable issue of fact” at this
juncture—she need not prove her claims to survive a motion to dismiss. “When there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.”66 It remains to be seen whether
Plaintiff can prove that she was subjected to verbal or physical conduct based on her race,67
but the Complaint here meets the prima facie test for a hostile work environment on its
face.
III. 	CONCLUSION
Accordingly, the Motion to Dismiss at Docket 16 is GRANTED IN PART
and DENIED IN PART. Because the Court finds that the Complaint contains sufficient
factual allegations to “state a claim to relief that is plausible on its face,”68 the Motion to
Dismiss as to Count 1, Hostile Work Environment, is DENIED.
64 Iqbal, 129 S. Ct. 1937, 1949–50(2009) (internal citations omitted); see also Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007).
65 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112–13 (9th Cir. 2004) (citing Steiner v.
Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994)).
66 Iqbal, 129 S. Ct. at 1950.
67 Surrell v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008) (citation omitted)
(emphasis added).
68 Iqbal, 556 U.S. at 678.
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The Motion to Dismiss is GRANTED with respect to Counts 2, 3, and 4, for
failure to exhaust administrative remedies.
Plaintiff is not entitled to Punitive Damages.
Defendant shall file an Answer to the Complaint on or before November 18,
2021.
IT IS SO ORDERED this 22nd day of October, 2021, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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